Canine Identification Requires Kelly Hearing—Court of Appeal

Evidence of scent identification by a trained dog matching a criminal defendant in a lineup to crime scene evidence cannot be admitted without a hearing to determine the scientific reliability of the technique, this district’s Court of Appeal ruled Friday.

Writing for Div. One, Justice Robert M. Mallano said it was error for Superior Court Judge Francis J. Hourigan III to allow the canine evidence matching Jeffrey Dewayne Mitchell to shell casings recovered at a murder scene without conducting a hearing under People v. Kelly (1976) 17 Cal.3d 24,

Under Kelly, proponents of evidence based on new technology must show it has achieved general acceptance in the relevant scientific community, establish the qualifications of the expert testifying, and prove the procedures were correctly employed.

Mallano noted that instead of evaluating the match detected by Reilly, the nine-year-old Labrador retriever used by the Los Angeles Sheriff’s Department to match Mitchell to the casings, under the Kelly test, Hourigan relied on cases involving dogs which tracked the scent of suspects. The justice pointed out that one of those cases—People v. Malgren (1983) 139 Cal.App.3d 234—required for admission a showing not possible in Mitchell’s situation.

Tracking Evidence

“The parties do not dispute that under well established law dog tracking or trailing evidence does not involve a scientific technique within the meaning of Kelly,” Mallano wrote. “But the differences between this type of evidence and evidence derived from scent identification lineups require a dramatic revision of the final element of the Malgren test, that ëthe trail had not become stale or contaminated.’”

Mallano said he wasn’t questioning the possibility that Reilly was capable of detecting scents as much as several months old, even on items that had been subjected to heat or fire, and of alerting when encountering an individual who had handled them, as the dog’s trainers claimed. But he said the case was the first in which California’s appellate courts had considered that type of scent evidence.

The justice declared:

“We do not suggest that Reilly’s feats are beyond belief. Canine ability to discriminate scent has a physiological, and therefore in its most fundamental sense, a scientific basis....

“Nevertheless, we are concerned in this case with the possibility that the scent of the shell casings found at the scene of the shooting may have been affected by the heat and pressure of being fired from a gun, the passage of time between when the casings were purportedly touched by defendant Mitchell, the conditions under which the casings were stored, and collection of the casings’ scents by the scent transfer unit. Dog handlersÖ testified that a scent will remain on an object for two to four months after it has been touched and that Reilly had succeeded in lineups conducted with objects that had been burned beyond recognition or surgically sterilized. But no effort was made to present information from any academic or scientific sources, let alone peer review journals, regarding these testimonial assertions. Thus, we are left with anecdotal rather than scientific explanations of Reilly’s capabilities.”

Scientific Evidence

Nor, Mallano said, had any scientific evidence been presented—either at the trial court level or on appeal—to support the claim that each individual has a unique scent.

“If each person’s scent is unique, it may be analogized to DNA,” the justice observed. “In contrast to the unsubstantiated claim of uniqueness here, the uniqueness of each person’s DNA as expressed by the statistical probability of a random match between two people was the subject of extensive litigation under Kelly.

Even if Kelly did not apply, Mallano said, a foundational showing greater than that presented before Hourigan, which largely involved Reilly’s training and record of success in matching items to persons who had touched them, would be required before scent lineup evidence should be admitted.

“In tracking and trailing, there is a history of canine performance which provides the basis for the fifth Malgren element—that this type of evidence will be admitted if it is shown that the dog was put on a fresh trail,” Mallano declared. “For scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person’s odor, beyond the mere experiences of one trainer and one dog.”

The justice added that the Kelly requirements would also apply to establishing the scientific validity of the scent transfer unit, a device described as a “essentially a modified dust buster” used by Reilly’s handlers to transfer scent from the shell casing to a gauze pad, which was then given to Reilly to sniff.

But Mallano said the erroneous admission of the scent evidence was harmless in view of the quantity of other testimony linking Mitchell to the 1999 gang shooting that led to his first-degree murder conviction. He noted that a co-defendant, against whom the evidence was similar and if anything weaker, was also convicted.

It was not reasonably probable the jury would have acquitted Mitchell if the scent evidence had been excluded, Mallano said.

Justice Reuben A. Ortega and Presiding Justice Vaino Spencer concurred. The case is People v. Mitchell, 03 S.O.S. 3789.

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